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Category Archives: CASE SUMMARIES

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Conducting “Traditional Relevance Analysis,” Court Denies Full Access to Plaintiff’s Social Networking Accounts

Posted in CASE SUMMARIES

Giacchetto v. Patchogue-Medford Union Free School Dist., 2013 WL 2897054 (E.D.N.Y. May 6, 2013)

In this case, the court conducted a “traditional relevance analysis” to assess Defendant’s request for broad access to Plaintiff’s social networking accounts and concluded that only limited discovery was appropriate. Specifically, the court concluded that “unfettered access to Plaintiff’s social networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.” Thus, the court ordered Plaintiff’s counsel to review Plaintiff’s postings and to produce those determined to be relevant, “keeping in mind the broad scope of discovery contemplated under Rule 26.”

No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”

Posted in CASE SUMMARIES

Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013) In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings.  Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of… Continue Reading

Special Master Analyzes Privilege Search Terms, Addresses Objection that they were Overbroad

Posted in CASE SUMMARIES

Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., 2013 WL 2384235 (D. Idaho May 1, 2013)

In this case, a Special Master was directed to obtain ESI (more than one million documents) from a bankruptcy trustee, to review it for privilege, and to prepare a privilege log. The documents were screened utilizing keyword search terms. Upon production of the resulting privilege log, Defendants objected that the terms used were overly broad and that the log contained non-privileged documents. The Special Master therefore conducted an analysis of the terms used and made recommendations to address the objection.

Court Orders Adverse Inference for Failure to Prevent Automatic Deletion

Posted in CASE SUMMARIES

Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL 2251727 (N.D. Ill. May 22, 2013)

In this case, the court granted Plaintiff’s motion for an adverse inference instruction where Defendant failed to prevent the automatic deletion of relevant data despite notice of impending litigation and receipt of a specific preservation notice, sent directly to Defendant’s general counsel.

Case Update: For Spoliation, Court Orders $250,000,000 “to be applied as a credit against Rambus’s [$349 million] judgment against SK hynix”

Posted in CASE SUMMARIES

SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013) In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions.  Upon… Continue Reading

For Good Cause Shown, Plaintiffs No Longer Required to Utilize Predictive Coding

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EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL, 2013 WL 1960621 (Del. Ch. May 6, 2013)

Previously, the court ordered the parties to “retain a single discovery vendor to be used by both sides” and to “conduct document review with the assistance of predictive coding.” On May 6, the court entered a new order, stating that Defendants could retain their chosen vendor and utilize computer assisted review but that the parties would not be required to retain a single vendor to be used by both sides and that “Plaintiffs may conduct document review using traditional review methods.”

Fourth Circuit Addresses Taxable Costs Related to ESI

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Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., —F. 3d.—, 2013 WL 1789728 (4th Cir. Apr. 29, 2013) In this case, the Fourth Circuit clarified “what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as ‘[f]ees for exemplification and the costs of making copies of any… Continue Reading

Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding

Posted in CASE SUMMARIES

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013) In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to… Continue Reading

Volume, Expense Insufficient to Show ESI is Inaccessible, “Rather, the cost or burden must be associated with some technological feature that inhibits accessibility.”

Posted in CASE SUMMARIES

W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, No. CIV. 11-2271 GAG, 2013 WL 1352426 (D.P.R. Apr. 3, 2013)

In this case the court addressed competing proposed protocols for the discovery of electronically stored information and declined to approve a provision that would require cost-shifting, among others. Notably, the court rejected the argument that the at-issue ESI was inaccessible (thus justifying cost-shifting) because the responding party did not show “that access to [the data] is hindered by any unique technological hurdles.”

Court Imposes Adverse Inference for Failure to Preserve Facebook

Posted in CASE SUMMARIES

Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013) In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account. Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled.  Defendants sought production… Continue Reading

Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck

Posted in CASE SUMMARIES, NEWS & UPDATES

In what is possibly the final chapter to last year’s Da Silva Moore predictive coding saga, the Second Circuit has denied Plaintiffs’ petition for a writ of mandamus compelling the recusal of Magistrate Judge Andrew Peck.  For those unfamiliar with the issues in this case, copies of the underlying decisions from both Magistrate Judge Peck… Continue Reading

Availability of Clawback Order Thwarts Claim of Undue Burden Based on Cost to Review

Posted in CASE SUMMARIES

In re Coventry Healthcare, Inc. ERISA Litig., No. AW 09-2661, 2013 WL 1187909 (D. Md. Mar. 21, 2013) In this brief opinion, the court considered Defendants’ claim that the burden of producing the requested ESI outweighed its potential benefit to the class action plaintiffs and granted Plaintiffs’ motion to compel.  Specifically, Defendants claimed that Plaintiffs’… Continue Reading

Court Imposes Rule 16(f)(1) Sanctions against EEOC for Causing Unnecessary Burdens and Delays

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EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH (D. Colo. Feb. 27, 2013)

Previously in this case, the court ordered broad discovery of the claimants’ social media, text messages and email. (See a summary of that opinion, here.) In this opinion, the court imposed sanctions for the EEOC’s actions which resulted in unnecessary delays and expense for the defendant, including actions related to the facilitation of the court ordered discovery. Notably, the sanctions were imposed pursuant to Rule 16(f), based on the Tenth Circuit’s “broader” interpretation of its application.

Court Denies Motion for Protective Order or Cost-Shifting Related to Request to Utilize Sixty-Seven Search Terms

Posted in CASE SUMMARIES

Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. 12-3427 (JLL), 2013 WL 541972 (D.N.J. Feb. 11, 2013) In this case, the court denied Defendant’s motion for a protective order “regarding the sixty-seven (67) electronic word searches” demanded by the plaintiff.  It also denied Defendant’s request that the cost of running those searches be… Continue Reading

Court Awards Millions in Attorneys’ Fees for Document Review Conducted by Contract Attorneys and Use of Computer-Assisted Review

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Gabriel Techs., Corp. v. Qualcomm, Inc., No. 08CV1992 AJB (MDD), 2013 WL 410103 (S.D. Cal. Feb. 1, 2013)

Following entry of judgment in their favor in this patent infringement case, Defendants filed a motion seeking attorneys’ fees, including $391,928.91 for document review conducted by an outside provider of discovery services and $2,829,349.10 “attributable to computerassisted [sic], algorithm-driven document review” utilized to reduce the number of documents requiring manual review. The court found these amounts reasonable and granted the motion in part. Ultimately, the court awarded Defendants a total of $12,465,331.01.

Court Considers the “Persnickety, but Persistent Question” of What Qualifies as “Content” Under the Stored Communications Act

Posted in CASE SUMMARIES

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)

In this case, the court granted in part Defendant’s Motion to Quash upon finding that Google’s production of metadata related to communications containing certain search terms and production of subject lines would violate the Stored Communications Act (“SCA”).

Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g)

Posted in CASE SUMMARIES

Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013) In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and… Continue Reading

502(d) Order Provides Right to Claw Back “No Matter What the Circumstances” that Resulted in Production

Posted in CASE SUMMARIES

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013) Upon receipt of “dueling letters” concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized “the need for counsel… Continue Reading

Court Concludes Defendants’ Reliance on a Vendor to Accomplish Collections was “Insufficient”

Posted in CASE SUMMARIES

Peerless Indus., Inc. v. Crimson AV, LLC, No. 1:11-cv-1768, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013)

In this case, the court concluded that Defendants’ reliance on a vendor to accomplish collections from a non-party whose documents were in Defendants’ control was “insufficient” and granted Plaintiff’s motion for sanctions. Specifically, the court ordered Defendants to “show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located,” to “specifically verify what it is they cannot produce” and ordered Plaintiff to submit its bill of costs related to preparation of the motion.

Fifth Circuit: “We conclude that the Stored Communications Act … does not apply to data stored in a personal cell phone.”

Posted in CASE SUMMARIES

Garcia v. City of Laredo, —F.3d—, 2012 WL 6176479 (5th Cir. Dec. 12, 2012) On appeal, the Fifth Circuit affirmed the district court’s interpretation of the Stored Communications Act (“SCA”) and concluded that it does not apply to data stored in a personal cell phone. Plaintiff was previously employed as a police dispatcher for the… Continue Reading

On Remand, Court Finds Rambus’ Spoliation was in Bad Faith and Resulted in Prejudice, Holds Patents-in-suit Unenforceable Against Micron

Posted in CASE SUMMARIES

Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013) Following remand from the Federal Circuit, the District Court considered the question of “whether Rambus acted in bad faith when it engaged in spoliation and the nature and extent of any prejudice suffered by Micron as a result . . . .”… Continue Reading

Citing General Counsel’s Willful Failure to Preserve and Other Violations, Court Orders Partial Default Judgment, an Adverse Inference Instruction & Monetary Sanctions

Posted in CASE SUMMARIES

Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 WL 6674434 (D. Ariz. Dec. 20, 2012) In this case arising from the alleged breach of an employment contract, discrimination, and related claims, the court found that Defendant was “at fault” for failing to preserve relevant evidence and imposed serious sanctions accordingly.  Notably, the court’s analysis focused… Continue Reading

Court Addresses What Constitutes “Bad Faith,” Imposes Adverse Inference & Monetary Sanctions

Posted in CASE SUMMARIES

Bozic v. City of Washington, No. 2:11-cv-674, 2012 WL 6050610 (W.D. Pa. Dec. 5, 2012)

Addressing Plaintiff’s accusation of spoliation based on the destruction of the contents of an audio tape, the court considered “the requisite mental state or level of scienter” necessary to establish bad faith, as is required in the Third Circuit, and found that the circumstances surrounding the destruction established sufficient culpability, that it was “highly likely” that Plaintiff was materially prejudiced, and that “no lesser sanction than at least a spoliation adverse inference would avoid substantial unfairness” and ordered an adverse inference and monetary sanctions.